A prosecutor in another Member State can have your company’s funds in Belgium frozen without a Belgian judge examining the merits of the case. Regulation (EU) 2018/1805 obliges the Belgian authority to execute that order as if it were a domestic one, and within 48 hours where urgency is claimed. A European freezing order reaches a group’s cash position long before any conviction.
When does a European freezing order apply in Belgium?
Regulation (EU) 2018/1805 of 14 November 2018 governs the mutual recognition of freezing orders and confiscation orders. It has applied since 19 December 2020, to certificates transmitted on or after that date (articles 40 and 41). Under article 2(1), a freezing order is a decision meant to prevent the destruction, transformation, moving, transfer or disposal of property with a view to its later confiscation.
The Regulation does not only hit the company against which the order was issued. Article 2(10) counts the owner of the property, and third parties whose rights are directly affected, among the affected persons. A subsidiary or a parent company can be an affected person without being a suspect itself.
Which offences skip the double criminality check?
Article 3(1) lists thirty-two offences for which the executing State does not verify double criminality, provided the acts are punishable in the issuing State by a custodial sentence of a maximum of at least three years. That list names corruption, fraud, laundering of the proceeds of crime, computer-related crime and swindling. For acts outside the list, Belgium may make recognition conditional on the conduct being an offence under Belgian law (article 3(2)).
How fast must the Belgian authority execute?
The executing authority recognises the order and executes it in the same way as a domestic freezing order, without delay and with the same speed and priority as in a similar domestic case (articles 7(1) and 9(1)). Where the certificate states that immediate freezing is necessary because the property is about to be removed or destroyed, the authority decides on recognition no later than 48 hours after receipt, and takes the concrete measures needed to execute no later than 48 hours after that decision (article 9(3)). The freezing lasts until the confiscation order has been definitively complied with, or until the issuing authority notifies that its order has been withdrawn (article 12(1)).
On what grounds can Belgium refuse?
Article 8(1) sets out a closed list. Refusal is possible where execution would be contrary to the ne bis in idem principle, where Belgian law provides a privilege or immunity that prevents the freezing, where the freezing certificate is incomplete or manifestly incorrect and has not been completed after consultation, and where the offence was committed wholly or partly in Belgium without amounting to an offence under Belgian law. In exceptional situations, refusal remains possible where there are substantial grounds to believe, on the basis of specific and objective evidence, that execution would entail a manifest breach of a Charter fundamental right.
Where does the company bring its challenge?
Article 33(1) gives affected persons the right to effective legal remedies in the executing State against the decision on recognition and execution, to be invoked before a court of that State and in accordance with its law. Article 33(2) rules out any challenge to the substantive reasons for the order before that court. A company that wants to attack the investigation itself has to go to the court of the issuing Member State.
Belgian law provides for the lifting of a seizure in article 28sexies of the Code of Criminal Procedure. Any person harmed by an investigative act concerning their property asks the public prosecutor (procureur des Konings) to lift it, and the prosecutor rules no later than fifteen days after the petition is entered in the register. Within fifteen days of being notified of that decision, the applicant can bring the matter before the indictments chamber (kamer van inbeschuldigingstelling). What such an application takes in practice is set out under request lifting of the seizure.
Article 32 requires the executing authority to inform the affected persons known to it without delay after execution, stating the issuing authority and the remedies available. That notification can be postponed for as long as the protection of an ongoing investigation requires (article 11(3)).
What does the company do now?
Ask the bank or the executing authority on what legal basis the funds are blocked and which Member State issued the order. Without those two facts neither route is open. Then check whether the certificate is complete and whether the offence falls within the list in article 3(1). How this fits with the criminal defence of the company depends on the classification used in the foreign file.
We assist companies whose funds in Belgium have been frozen or seized, from the request to lift the measure to the criminal defence. Would you like more information or an appointment? Contact us without obligation through our contact form.